1. PURCHASE ORDER ACCEPTANCE. These Terms and Conditions of Purchase (these “Terms”) together with the order form to which they are attached or in which they are referenced (collectively, the “Order”) constitute an offer by Incredible Supply, LLC (“Buyer”) to purchase the products listed in the order form (the “Products”) from the vendor or supplier identified in the Order (“Supplier”). This Order shall be deemed accepted by Supplier upon the earlier of (a) Supplier’s execution and delivery of the Order to Buyer, (b) Supplier’s commencement of performance or shipment of the Products to Buyer, or (c) if the Order is not sooner rejected by Supplier in writing, the end of the third (3rd) business day following Buyer’s delivery of the Order. If Supplier validly and timely rejects this Order, Buyer will have sole discretion in determining whether to issue a new Order, which, if issued, would constitute a new offer to purchase, superseding the corresponding rejected Order, and restart the foregoing process. Buyer hereby objects to and rejects any different, additional and/or supplementary terms and conditions set forth in Supplier’s communications including those set forth in Supplier’s bid, quotation, acknowledgment, invoice, or other similar document.

2. SHIPMENT AND DELIVERY. Supplier will ship the Products by the means, and shall deliver or cause the delivery of the Products by the date(s), that are specified in the Order. Time is of the essence in performance of this Order. Delivery of Products occurs upon unloading at the location designated by Buyer in the Order or as otherwise provided by Buyer in writing. Supplier shall (a) deliver and unload all Products at the location designated by Buyer; (b) ensure the Products are adequately packaged and marked for transportation and delivery; and (c) pay all costs, duties, taxes, tariffs and expenses associated with transportation (including any import or clearance fees) and unloading up until the point of delivery at Buyer’s designated facility. In addition to any other rights and remedies that Buyer may have, in the event of Supplier’s failure to make timely shipments or meet any other delivery obligations, including any specific shipping, packaging, or marking requirements requested by Buyer, (i) Buyer may refuse any Products and cancel this Order, in whole or in part, and any advance payments made to Supplier shall be returned to Buyer within five (5) calendar days after such cancellation, and (ii) to the extent Buyer declines to refuse Products or cancel this Order, Supplier shall be responsible for all shipping costs and expenses incurred in connection with correcting Supplier’s failure, including the costs of expediting shipment with respect to late deliveries, and Supplier will indemnify Buyer from any Losses (as defined below) arising from Supplier’s failure. Delivery of the Products is not complete until such Products have been received and accepted by Buyer in accordance with this Order.

3. INSPECTION AND DOCUMENTATION. Buyer shall have the right to inspect the Products and Supplier’s manufacturing processes and facilities used in production of the Products at all reasonable times. Subject to Supplier’s reasonable restrictions regarding safety and security, Buyer’s customer may attend any inspections performed by Buyer. Supplier shall provide Buyer with data, drawings, specifications, test results, quality documentation, schedules and all other information necessary for Buyer’s use and receipt of the Products. Buyer shall have a reasonable time, not less than thirty (30) days, after receipt to inspect Products. Buyer’s inspection, waiver of inspection, acceptance of and/or payment for Products shall not relieve Supplier of its obligations, covenants, representations or warranties nor limit Buyer’s or its end customers’ rights and remedies.

4. REJECTION OF GOODS. Buyer may reject any Products that are (a) shipped in error or contrary to Buyer’s shipping instructions; (b) defective; or (c) non-compliant with the Specifications or this Order. Buyer, at its election, may either (i) reject any or all such Products at Supplier’s risk and expense and charge Supplier for all reasonable costs, expenses and damages incurred by Buyer as a result of Supplier’s delivery of such rejected Products, or (ii) keep any or all such Products, and, in
addition to other available remedies, deduct from the price for such Products an amount reasonably determined by Buyer in its sole discretion. Supplier shall immediately notify Buyer, and in any case within forty-eight (48) hours of discovery, of any nonconformances that may affect the Products, or any other reason that may cause the Products not to comply with terms of this Order, even if discovered after delivery of the Products to Buyer.

5. TITLE AND RISK OF LOSS. Title to and all risk of loss or damage to the Products shall remain with Supplier until delivery in accordance with the Order. Supplier shall adequately insure the Products against such loss and damage at Supplier’s own expense.

6. PRICING AND PAYMENT. All prices shall correspond to unit costs agreed in the Order and be inclusive of (a) applicable freight, packaging, insurance, handling and other charges; (b) all sales, use, excise and other taxes; and (c) all duties, fees or other assessments of whatever nature imposed on Supplier by governmental authorities, and shall not be subject to increases for any reason. Buyer’s obligation to pay Supplier is expressly conditioned upon Buyer’s receipt of completed, conforming Products. Buyer will pay Supplier the undisputed amounts on Supplier’s complete and accurate invoice, which conforms to the Order in all respects, within the period specified on the Order (or if none, within thirty (30) days) following the later of (i) delivery of all conforming Products covered by the Order or (ii) Buyer’s receipt of the conforming invoice. Buyer may deduct and set off, from and against any amount due to Supplier under this Order, any amount owed to Buyer by Supplier under this Order or any other agreement between the parties, without waiver or limitation of any other rights or remedies.

7. WARRANTY. Supplier shall warrant and ensure to Buyer and Buyer’s end customer(s) that the Products shall (a) be free from all defects in design, materials, and workmanship; (b) strictly conform to the specifications, measurements, descriptions, samples, and documentation provided to Supplier or which are generally published by Supplier with respect to such Products and such other descriptions of the technical characteristics, performance standards, and other similar measurements as are set forth for such Products in writing by Buyer, together with any other written documentation mutually agreed upon by the parties, including samples, examples, diagrams, illustrations, and notes that are provided by Buyer to Supplier (or provided by Supplier and approved by Buyer) in writing (or, in the case of samples or examples, in tangible form) or made available by Buyer for Supplier’s review (collectively, the “Specifications”); (c) be fit for the intended purpose; (d) be of merchantable quality; (e) be free of any liens, claims and encumbrances; and (f) comply with all applicable Laws. If any Products fail to satisfy any of the foregoing warranties, Supplier will promptly, at no cost to Buyer and at Buyer’s election, (i) repair such Products to correct the defect; (ii) replace the defective Products at no additional cost to Buyer or Buyer’s end customer; or (iii) accept return of the Products and issue a refund equal to the purchase price of the defective Products to Buyer or, at Buyer’s election, Buyer’s end customer. Within ten (10) calendar days of Buyer’s written demand reasonably evidencing the costs, Supplier shall reimburse Buyer for the costs it or its end customer incurs in removing and replacing such Products and returning the Products to Supplier. Supplier additionally warrants that, as applicable, (A) the Products shall include a safety data sheet to the extent the Products are hazardous substances, as defined by the Occupational Safety and Health Administration or other applicable Laws, and (B) Supplier shall identify to Buyer whether or not the Products are compliance with the Trade Agreements Act, as implemented by Federal Acquisition Regulations Part 25. Buyer and its end customer’s remedies set forth in this Section shall be in addition to any other remedy available to Buyer or its end customer at law or in equity. It is the Supplier’s responsibility to ensure its suppliers are aware of and meet or comply with any applicable Buyer or end customer requirements.

8. INTELLECTUAL PROPERTY. If Supplier delivers any Products that include Supplier’s intellectual property that is conceived or acquired outside of the performance of this Order (“Background IP”), and is necessary for the purposes of this Order, Supplier hereby grants and promises to grant to Buyer and Buyer’s end customer an irrevocable, non-exclusive, transferable, with the right to grant sublicenses, royalty-free, worldwide right to use, sell, offer for sale, import, and export the
Background IP.

9. TERMINATION. Except as otherwise provided in this Order, the Order is non-cancellable by Supplier once accepted by Supplier. Buyer may propose changes or revisions to this Order at any time by written request to Supplier. Supplier agrees that upon receipt of any such request, the Order will be modified in writing as mutually agreed by the Parties, including any agreed upon adjustments to price or delivery schedule. Buyer may terminate this Order, in whole or in part, immediately upon notice to Supplier (a) for any reason, prior to the shipment of the Products, (b) for cause and without liability to Supplier upon written notice to Supplier if Supplier commits a material or persistent breach of this Order and (if such breach is remediable) fails to cure such breach to the reasonable satisfaction of Buyer within fifteen (15) days after notice of the breach from Buyer, (c) if Supplier is or becomes insolvent or is declared bankrupt by a court of competent jurisdiction, (d) if a voluntary petition of bankruptcy is filed in any court of competent jurisdiction by Supplier, (e) if an involuntary petition for bankruptcy is filed in any court of competent jurisdiction against Supplier (provided that such involuntary petition has not been set aside or stayed within sixty (60) days thereafter), (f) if a receiver or trustee is appointed for Supplier, or (g) if this Order is assigned by Supplier for the benefit of its creditors.

10. LIMITATION OF LIABILITY. IN NO EVENT WILL BUYER’S AGGREGATE, CUMULATIVE LIABILITY TO SUPPLIER ARISING OUT OF OR RELATED TO THIS ORDER EXCEED THE PURCHASE PRICE OF THIS ORDER. BUYER SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS ORDER (WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, OR FROM NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER FORM OF ACTION).

11. INDEMNITY. Supplier shall defend, indemnify, and hold harmless Buyer and its affiliates, and its and their respective officers, directors, employees, customers and agents and successors and assigns of each of the foregoing (collectively, the “Buyer Indemnitees”) from and against any and all losses, damages, deficiencies, awards, assessments, judgments, fines, penalties, costs, injuries, settlements, liabilities and expenses (including consequential damages and reasonable legal accounting, expert, consulting and investigative fees, costs and expenses)(collectively, “Losses”) incurred by the Buyer Indemnitees in connection with any claim, cause of action, demand, suit, or proceeding (a) alleging that any Products infringe or misappropriate any patent, copyright, trademark, trade secret, or other intellectual property right belonging to a third party, (b) arising from or related to a breach of Section 7, Section 16 or Section 17 of these Terms, (c) arising from or related to property damage, personal injury or death caused by Supplier’s acts or omissions or breach of this Order, or (d) arising from or related to Supplier’s failure to comply with applicable Laws. Without limiting any other right or remedy that Buyer may have under this Order, in the event that Buyer believes that it will be precluded from using or selling any Products as a result of any claim described in Section 11(a), Supplier will promptly, on request of Buyer, (i) attempt to negotiate a license that permits Buyer to use and sell the Products without any further cost to Buyer or (ii) promptly modify or replace the infringing Products such that they are non-infringing but still meet all the requirements of this Order. If the foregoing are not possible or if Supplier is not able to accomplish either action set forth in sections (i) or (ii) of this Section 11 within sixty (60) days after Buyer’s request, then Supplier shall accept Buyer’s return of all Products affected by the claim of infringement or misappropriation and refund to Buyer the purchase price paid therefor and reimburse Buyer for the packing, insurance and shipment costs incurred in connection with such return, in each case within ten (10) days after delivery of the Products to Supplier.

12. SUBCONTRACTING; ASSIGNMENT. Supplier may not subcontract or delegate any of its obligations arising under this Order or assign or transfer any part of this Order, whether by agreement, operation of law, or otherwise, without the express prior written consent of Buyer. Any purported subcontracting, delegation, assignment or transfer in violation of this Section will be null and void. Subject to the foregoing, this Order will bind each party and its permitted successors and assigns. Supplier remains fully responsible for any obligations, services, and functions performed by its suppliers and subcontractors of any tier, to the same extent as if such obligations, services, and functions were performed by Supplier’s employees, and for the purposes of this Order, such obligations, services, and functions will be deemed performed by Supplier. Supplier shall ensure that any suppliers and subcontractors engaged by Supplier in connection with this Order will comply with this Order in all material respects applicable to such suppliers and subcontractors or their activities, materials and goods provided in connection with this Order.

13. APPLICABLE LAW; JURISDICTION. This Order shall be governed by and construed according to the laws of the Commonwealth of Virginia without reference to principals of conflicts of laws, and the parties hereby submit to the exclusive jurisdiction in the state and federal courts in the Commonwealth of Virginia.

14. CONFIDENTIALITY. Unless expressly agreed to in writing, all information disclosed by Buyer that a reasonable person would understand to be confidential or proprietary shall be maintained in confidence by Supplier. Supplier shall not disclose such information to any third person without Buyer’s prior written consent, and shall not use such information for any purpose other than the performance of its obligations or enforcing its rights under this Order. Nothing set out in this Section
will prevent Supplier from disclosing Buyer’s confidential information when such disclosure is required by applicable Laws. Supplier shall promptly return or destroy any such information upon Buyer’s request. If the parties hereto have signed a nondisclosure agreement (“NDA”), it is hereby incorporated into these terms by this reference, but for purposes of this Order the permitted use in the NDA is expanded to include the purposes of this Order.

15. INDEPENDENT CONTRACTOR RELATIONSHIP. The parties are independent contractors and neither party shall be, nor be considered to be, an agent, distributor, or representative of the other party or entitled to bind the other in any manner, and neither party shall represent itself as an agent of the other party or as otherwise expressly authorized to act for or on behalf of the other party. No representative, agent or employee of a party to this Order shall have the status of an employee of the other party or any right to any benefits that the other party grants to its employees. Each party acknowledges that as an independent contractor, it is fully responsible for its federal, state, and local taxes and those of its employees.

16. COMPLIANCE WITH APPLICABLE LAWS; EXPORT AND IMPORT. Supplier warrants it shall comply with any applicable foreign, federal, state and local statutes, codes, ordinances, rules, regulations and orders (“Laws”), including Export Control Laws as defined below, in its performance of this Order. Supplier will not export or permit the export or re-export of any technical data received under this Order except with Buyer’s prior written approval and, if applicable, in compliance with the export control laws of the United States, which may include the U.S. Export Administration Regulations, the Trading With the Enemy Act, the International Emergency Economic Powers Act, the Arms Export Control Act and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time to time (collectively, the “Export Control Laws”). All actions taken by Supplier in furtherance of fulfillment of this Order will comply with applicable Export Control Laws. Supplier will not export, re-export or license any technical data received under this Order to any parties located in countries prohibited under U.S. embargoes or sanctions programs maintained by OFAC or otherwise prohibited under the Export Control Laws. In addition, Supplier will not export, re-export or license any technical data received under this Order to any parties that are named as a “Specially Designated National” or “Blocked Person” as designated by OFAC. Supplier further agrees that it will cooperate fully with Buyer in furnishing Buyer with all necessary information and certificates, including customer certificates, that Buyer may require in order to obtain licenses, comply with export recordkeeping requirements and
otherwise comply with the Export Control Laws.

17. FEDERAL GOVERNMENT CONTRACT REQUIREMENTS. Supplier acknowledges that Buyer is a prime and/or subcontractor to one or more agencies of the United States federal government. If and to the extent any contract between Buyer or Buyer’s end customer, on one hand, and any governmental agency on the other hand, requires that this Order include any supplemental terms and conditions (e.g., Federal Acquisition Regulations, Defense Federal Acquisition Regulation Supplement, and/or Agency Supplemental Regulations) with respect to any Products that will or are expected to be resold by Buyer to the applicable governmental agency, then Buyer will include the required supplemental terms and conditions on the face of the Order or in Attachment A to these Terms, it being agreed that such supplemental terms and conditions will take precedence to the extent of any conflict with any other provisions of this Order.

18. ENTIRE ORDER. This Order constitutes the entire agreement between Buyer and Supplier with respect to the subject matter of this Order and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Buyer and Supplier, whether written or oral, relating to the subject matter of this Order, it being understood that this Order shall not amend or replace any other order form or other agreement between the parties relative to Supplier’s products other than the Products covered by this Order or any of a party’s rights, obligations, or remedies thereunder. No amendment or modification of this Order shall be binding upon Buyer unless set forth in a written instrument signed by Buyer’s duly authorized representative.

19. GENERAL. The rights and remedies afforded to Buyer or its customers pursuant to any provision of this Order are in addition to any other rights or remedies afforded by any other provision of this Order, by law, or otherwise. Any notice or communication permitted or required hereunder will be in writing. Supplier shall not use the name of Buyer or its end customers, or its or its end customer’s affiliates, or subsidiaries, without Buyer’s prior written approval. Except as otherwise expressly stated herein, the parties agree that they do not intend to create any enforceable rights in any third parties under this Order and that there are no third-party beneficiaries to this Order. If any provision of this Order is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. A party’s failure to insist upon strict performance of any provision of this Order, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect a party’s right to enforce any other provision or right herein. Whenever the words “include,” “includes” or “including” are used in the Order, they will be deemed to be followed by the words “without limitation.”